Bailey v. Ada, City of

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF OKLAHOMA

CHRISTY BAILEY, as Personal )

Representative of the Estate )

of Jeffrey Peterson, deceased, )

)

Plaintiff, )

)

v. ) Case No. CIV-20-327-JAR

)

CITY OF ADA; )

OFFICER MARCUS BEALE; )

OFFICER JUSSELY CANADA; )

OFFICER MICHAEL MEEKS; and )

OFFICER PHILLIP VOGT. )

)

Defendants. )

OPINION AND ORDER

This matter comes before the Court on the following motions:

(1) Motion for Summary Judgment filed by Defendants Officer Jussely

Canada, Officer Michael Meeks, and Officer Phillip Vogt (Docket

Entry #93); (2) Motion for Summary Judgment filed by Defendant

City of Ada (Docket Entry #94); and (3) Motion for Summary Judgment

filed by Defendant Officer Marcus Beale (Docket Entry #95).

Facts Relevant to All Claims

Officers Canada, Meeks, and Vogt are all CLEET certified

officers with the City of Ada, Oklahoma Police Department. On

September 21, 2019, these Officers received a call for assistance

from Officer Marcus Beale, also a CLEET certified officer with the

City of Ada, who was at the scene of an apartment rented by Jeffrey

Peterson (“Peterson”). Officer Canada was the first of the backup

officers to arrive. She observed Officer Beale up against the

closed door of Peterson’s apartment and a female, identified as

Megan Timmons (“Timmons”) was standing over to the side at the

apartment. (Canada Depo., p. 29, ll. 1-13). Officer Canada never

attempted to make contact with Timmons prior to entering Peterson’s

apartment. She was asked for assistance by Officer Beale which

she deemed more important at the time. (Canada Depo., p. 39, ll.

8-14).

Officer Canada went to Officer Beale, who had his duty weapon

drawn. (Canada Depo., p. 29, ll. 14-19). Seeing Officer Beale’s

weapon, Officer Canada also drew her weapon. (Canada Depo., p.

30, ll. 4-6). Officer Beale told Officer Canada that Peterson had

slammed the apartment door on Officer Beale’s arm as he tried to

enter the apartment. (Canada Depo., p. 38, ll. 5-7). She also

stated that Peterson “told officers that he was going to treat us

as intruders if we went into the residence” although she did not

attribute this statement to Officer Beale. (Canada Depo., p. 33,

ll. 23-25, p. 34, ll. 1-2). Officer Canada did not know what

happened before she arrived, only what she was told by Officer

Beale. (Canada Depo., p. 38, ll. 1-4). She only knew that Officer

Beale had told her that Peterson had committed assault and battery

on a police officer when the door was allegedly slammed upon

Officer Beale’s arm. (Canada Depo., p. 34, ll. 17-24).

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Officer Canada did not know if Officer Beale had any injuries

resulting from the slamming of the door on his arm. (Canada Depo.

p. 38, ll. 5-16). She did not hear him complain of any pain or

soreness in his arm. (Canada Depo. p. 38, ll. 21-25).

Officer Canada testified that the other officers arrived on

the scene in “[a] matter of moments.” (Canada Depo. p. 39, ll.

1-7). Officer Meeks arrived with Officer Vogt, who was in training

with Officer Meeks. (Meeks Depo., p. 26, ll. 14-24). Officer

Meeks and Officer Vogt arrived at the Peterson apartment and

observed Officer Beale and Officer Canada on the front porch.

They also approached the front porch where Officer Canada briefed

Officer Meeks. (Meeks Depo., p. 30, ll. 1-9). Officer Meeks

understood that “there was some sort of threats that had been

made.” (Meeks Depo., p. 30, ll. 10-13). Officer Meeks did not

recall speaking with Officer Beale before the apartment door was

breached. (Meeks Depo. p. 31, ll. 1-3).

Officer Meeks stated that he believed Officer Beale was trying

to gain access into Peterson’s apartment, stating “from what

Officer Canada said and Officer Beale’s actions, I proceeded (sic)

that some sort of maybe threats or maybe some sort of assault that

had occurred.” (Meeks Depo., p. 31, ll. 9-12). He believed that

there was a “serious threat”, “[t]aking the totality of what I was

told and what I saw. . . .” (Meeks Depo., p. 32, ll. 6-9).

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Officer Meeks observed Officer Beale trying to gain access

through the apartment door several times. Officer Beale tried to

holster his weapon but ultimately placed it on a concrete pillar

on the front porch. Officer Meeks grabbed the gun, deciding that

the porch was “probably not the best place for it” and gave it to

Officer Vogt. (Meeks Depo., p. 32, ll. 11-18). Meeks holstered

his weapon so that he could use both hands to arrest or detain

Peterson. (Meeks Depo., p. 32, ll. 19-25, p. 33, ll. 1-2). He

did not know if Peterson was armed. (Meeks Depo., p. 34, ll. 14-

16). Officer Meeks believed that entry to the house had to be

made because “something had happened prior to [his] arrival with

Officer Beale and that he was in hot pursuit of a suspect.” (Meeks

Depo., p. 34, ll. 13-20).

A review of Officer Canada’s body camera reveals that Officer

Beale attempted to repeatedly force the door open but it would

close again. (Canada Video at 15:00:10). Officer Meeks then gets

behind Officer Beale to jointly push their way through the

apartment door. (Canada Video at 15:00:17). Officer Beale

stated, “You done f***** up, man.” (Canada Video at 15:00:21).

Officer Canada can then be seen placing her hand on Officer Meeks’

back to assist in pushing through the door. (Canada Video at

15:00:22). Officer Vogt cannot be seen pushing through the door

but Officer Meeks testified that he came behind Officer Canada.

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(Meeks Depo., p. 33, ll. 25, p. 34, ll. 1-2). The Officers then

gain access to the apartment by forcing their way through the door.

(Canada Video at 15:00:25). Officer Beale and Officer Meeks

physically struggle with Peterson who resists their attempts to

restrain him. (Canada Video at 15:00:28). Officer Canada then

deploys a taser on Peterson multiple times. (Canada Video at

15:00:31, 15:00:36). Officer Meeks begins yelling “Cuff him, cuff

him, cuff him”. (Canada Video at 15:00:41). Officers Beale,

Meeks, and Vogt become visible on the video, struggling to restrain

Peterson while Officer Canada continues to deploy her taser.

(Canada Video at 15:00:41). Officer Vogt attempts to place

handcuffs on Peterson while Officers Beale and Meeks continue their

physical struggle with Peterson. (Canada Video at 15:00:48).

Officer Vogt’s efforts are unsuccessful. (Canada Video at

15:00:52). Officer Meeks begins screaming. (Canada Video at

15:00:57). Officer Beale disengages from his struggle with

Peterson and becomes “wrapped up” in the lead lines from Officer

Canada’s taser. (Canada Video at 15:01:14). Officer Meeks

continued to struggle with Peterson in the corner of the apartment.

(Canada Video at 15:01:17). Officer Meeks then begins screaming

“going for my gun.” (Canada Video at 15:01:25). A taser

continues to be audibly deployed. (Canada Video at 15:01:26).

Officer Canada then calls dispatch for “more units.” (Canada

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Video at 15:01:29). Officer Meeks again yells “going for my gun.”

(Canada Video at 15:01:33). Officer Beale can be seen pointing a

weapon in the direction of Officer Meeks and Peterson, yelling

“watch out, watch out.” (Canada Video at 15:01:39). Officer

Meeks again yells “going for my gun.” (Canada Video at 15:01:43).

Gun shots are heard in the video from Officer Beale’s weapon.

(Canada Video at 15:01:46). Officer Canada advises dispatch

“shots fired, shots fired.” (Canada Video at 15:01:47). Officer

Canada then tells dispatch “roll EMS.” (Canada Video at

15:01:52).

Officer Meeks testified that when he entered the apartment

behind Officer Beale, Peterson was “making contact” with Officer

Beale “in the face area” while Officer Beale was trying to grab

Peterson’s hands. (Meeks Depo., p. 42, ll. 10-22). Peterson and

Officer Beale then traded punches when they ended up on the couch

with Peterson on top of Officer Meeks and both of them continuing

to throw punches. (Meeks Depo., p. 42, ll. 24-25; p. 43, ll. 1-

3). He testified that Peterson then tried to grab Officer Beale’s

gun but it was not in the holster. (Meeks Depo., p. 43, ll. 5-

7). Officer Meeks also tried to grab Peterson’s arms and body.

(Meeks Depo., p. 43, ll. 24-25).

Officer Meeks also believed Officer Beale told Officer Canada

to tase Peterson, which she attempted with little effect. (Meeks

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Depo., p. 45, ll. 6-9). Officer Meeks stated when he tried to

handcuff Peterson but Peterson grabbed for his gun. (Meeks Depo.,

p. 45, ll. 9-13). Officer Meeks stated that he screamed in order

to direct Peterson’s attention so he turned toward the Officer.

(Meeks Depo., p. 45, ll. 24-25; p. 46, l. 1). Peterson got off

Officer Beale and continued struggling with Officer Meeks, trying

to strike Officer Meeks numerous times throughout the incident.

(Meeks Depo., p. 46, ll. 4-10). Officer Meeks did not see Peterson

try to strike either Officer Canada or Officer Vogt. (Meeks Depo.,

p. 46, ll. 11-15).

Officer Meeks could “feel [Peterson] trying to reach for my

gun.” (Meeks Depo. p. 46, ll. 23-24). He could feel Peterson’s

hand on his holster and the handle of the gun. (Meeks Depo., p.

47, ll. 1-2). Officer Meeks stated Peterson “actually got ahold

of the handle and put his hands or fingers around the handle of my

– my gun that was still in my holster and was trying to lift up,

pull it out of the holster. And during those times I actually

said or screamed, he’s going for my gun, he’s trying to get my

gun.” (Meeks Depo., p. 47, ll. 18-24). Officer Vogt testified

that when Officer Meeks screamed, he looked over Peterson’s

shoulder and could “see that his left arm is on Officer Meeks’

firearm with the retention broken, and I see the firearm’s being

pulled out as Officer Meeks is using both of his arms to attempt

7

to push it back into the holster.” (Vogt Depo., p. 36, ll. 3-9).

Officer Canada stated that she observed Peterson trying to

get Officer Meeks’ duty weapon out of his holster. (Canada Depo.

p. 53, ll. 23-24). She testified that she saw Peterson “grabbing

ahold of Officer Meeks’ pistol and trying to grab it out of the

holster” with his left hand. (Canada Depo. p. 54, ll. 4-7).

Officer Canada saw Officer Beale use his taser on Peterson.

(Canada Depo., p. 54, ll. 11-15). She looked down and saw one of

the Officer’s duty pistols on the ground. (Canada Depo., p. 54,

ll. 19-20). Officer Beale asked Officer Canada for the duty pistol

on the floor. She handed him the weapon. Officer Beale then shot

Peterson three times while Peterson continued to grapple with

Officer Meeks. Peterson died from his wounds.

Plaintiff brought this action on September 21, 2020, alleging

(1) a violation by all Defendants of Peterson’s First, Fourth, and

Fourteenth Amendment constitutional rights as enforced through 42

U.S.C. § 1983 by “illegally seizing Plaintiff, illegally entering

Plaintiff’s home, using excessive force, failing to intervene to

prevent the deprivation of [Peterson’s] rights, retaliating

against [Peterson] for the exercise of his rights, and acting in

concert to commit these constitutional violations, Defendants

exhibited an unreasonable and deliberate indifference to

[Peterson’s] rights.”; (2) wrongful death against all Defendants;

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(3) intentional infliction of emotional distress against the

Defendant Officers; (4) negligent hiring, training, and retention

against Defendant City of Ada (“City”); (5) assault and battery

against all Defendants; and (6) an Open Records Act violation

against Defendant City.

General Law Governing Summary Judgment

Under Rule 56(c) of the Federal Rules of Civil Procedure,

summary judgment is appropriate “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to judgment

as a matter of law.” Universal Money Centers v. A.T. & T., 22

F.3d 1527, 1529 (10th Cir.), cert. denied, 513 U.S. 1052, 115 S.Ct.

655, 130 L.Ed.2d 558 (1994). The moving party bears the initial

burden of showing that there is an absence of any issues of

material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106

S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986). A genuine issue of

material fact exists when “there is sufficient evidence favoring

the nonmoving party for a jury to return a verdict for that party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505,

2510-11, 91 L.Ed 2d 202 (1986). In determining whether a genuine

issue of a material fact exists, the evidence is to be taken in

the light most favorable to the nonmoving party. Adickes v. S.H.

9

Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d

142 (1970). Once the moving party has met its burden, the opposing

party must come forward with specific evidence, not mere

allegations or denials of the pleadings, which demonstrates that

there is a genuine issue for trial. Applied Genetics v. Fist

Affiliated Securities, 912 F.2d 1238, 1241 (10th Cir. 1990); Posey

v. Skyline Corp., 702 F.2d 102, 105 (7th Cir. 1983).

Summary Judgment Request of Officers Canada,

Meeks, and Vogt

Officers Canada, Meeks, and Vogt first assert they are

entitled to qualified immunity and, in doing so, first asserts

that no violation of the Fourth Amendment occurred. “Individual

defendants named in a § 1983 action may raise a defense of

qualified immunity,” Cillo v. City of Greenwood Village, 739 F.3d

451, 459 (10th Cir. 2013), which “shields public officials . . .

from damages actions unless their conduct was unreasonable in light

of clearly established law,” Gann v. Cline, 519 F.3d 1090, 1092

(10th Cir. 2008)(quotations omitted). Generally, “when a

defendant asserts qualified immunity, the plaintiff carries a

two-part burden to show: (1) that the defendant’s actions violated

a federal constitutional or statutory right, and, if so, (2) that

the right was clearly established at the time of the defendant’s

10

unlawful conduct.” Cillo, 739 F.3d at 460.

While Plaintiff identifies a litany of alleged constitutional

violations in the Complaint, she limits her discussion within the

response to the summary judgment motion to the warrantless entry

into Peterson’s apartment and excessive force. This Court will,

therefore, consider any other alleged violation as abandoned. The

remaining two bases for an alleged constitutional violation will

be addressed in turn.

The Fourth Amendment imposes strict limits on when law-

enforcement officers may enter a home without a warrant. See United

States v. McCullough, 457 F.3d 1150, 1163 (10th Cir. 2006) (“‘It

is a basic principle of Fourth Amendment law that searches and

seizures inside a home without a warrant are presumptively

unreasonable.’”) (quoting Payton v. New York, 445 U.S. 573, 586,

(1980)).

A warrantless entry into a home may be justified, however, in

certain exceptional circumstances. See Coolidge v. New Hampshire,

403 U.S. 443, 474–75 (1971) (“It is accepted, at least as a matter

of principle, that a search or seizure carried out on a suspect's

premises without a warrant is per se unreasonable, unless the

police can show that it falls within one of a carefully defined

set of exceptions based on the presence of ‘exigent circumstances.’

11

”); see also Brigham City v. Stuart, 547 U.S. 398, 403 (2006) (“We

have held, for example, that law enforcement officers may make a

warrantless entry onto private property to fight a fire and

investigate its cause, to prevent the imminent destruction of

evidence, or to engage in ‘hot pursuit’ of a fleeing suspect.”

(internal citations omitted)); Georgia v. Randolph, 547 U.S. 103,

116 n. 6 (2006) (listing “hot pursuit,” “protecting the safety of

... police officers,” “imminent destruction [of a] building,”

“likelihood that [a] suspect will imminently flee,” and “a fairly

perceived need to act on the spot to preserve evidence” as exigent

circumstances that might justify a warrantless search of a

residence).

In this case, Officers Canada, Meeks, and Vogt consistently

stated that they relied upon what they were told by Officer Beale

as to the justifying circumstances for a warrantless entry of

Peterson’s apartment. The bases provided by Officer Beale were

(1) he had been assaulted by Peterson; (2) Peterson threatened

further violence against Officer Beale by stating he would be

“treated like an intruder”; and (2) after assaulting Officer Beale,

Peterson fled into his apartment. Officer Beale’s representations

were all that Officers Canada, Meeks, and Vogt knew and relied

upon in their subsequent actions of following Officer Beale into

12

Peterson’s apartment. The foundation for their continued actions

in this encounter would have represented exigent circumstances

justifying a warrantless entry into the apartment under the clearly

established law existing at the time, so long as (1) they were

entitled to rely upon Officer Beale’s representations; and (2) it

was objectively reasonable to do so.

This is not a novel concept in the Tenth Circuit case

authority. In Stearns v. Clarkson, the Tenth Circuit stated

When one officer requests that another

officer assist in executing an arrest, the

assisting officer is not required to second-

guess the requesting officer's probable cause

determination, nor is he required to

independently determine that probable cause

exists. See Baptiste v. J.C. Penney Co., 147

F.3d 1252, 1260 (10th Cir. 1998) (“An officer

who is called to the scene to conduct a search

incident to arrest is not required to

reevaluate the arresting officer's probable

cause determination in order to protect

herself from personal liability.”). Rather,

“a police officer who acts in reliance on what

proves to be the flawed conclusions of a

fellow police officer may nonetheless be

entitled to qualified immunity as long as the

officer's reliance was objectively

reasonable.” Id. (quotations omitted).

Stearns, 615 F.3d 1278, 1286 (10th Cir. 2010).

Officers Canada, Meeks, and Vogt, faced with a emergent

situation, were reasonable in their reliance upon Officer Beale’s

13

representations of the circumstances presented. Plaintiff is

critical of several of these Officers’ actions. She contends that

Officer Beale never relayed his assault over the radio or deemed

the situation an emergency. This does not diminish the increased

level of threat communicated by Officer Beale to the assisting

Officers when these Officers arrived and their reliance upon those

representations. Similarly, Officer Beale told the assisting

Officers that his arm was slammed in the door but Plaintiff

contends they did not observe any injury. The Officers were not

required to investigate the level of injury sustained by Officer

Beale before acting in concert with him to enter the apartment.

Plaintiff also states that Timmons does not support Officer

Beale’s version of the facts. This may have an effect upon Officer

Beale’s status in this action but it does not affect the

reasonableness of the reliance of Officers Canada, Meeks, and Vogt

upon Officer Beale’s representations.

Considering what these Officers knew and when they knew it

based entirely upon Officer Beale’s version of the facts, this

Court concludes that these Officers are entitled to qualified

immunity for their actions in entering Peterson’s apartment

without a warrant.

The Fourth Amendment to the Constitution also precludes an

14

illegal “seizure” of a citizen through the use of excessive force.

U.S.C.A. Const. Amend. IV. The question to be answered in a

qualified immunity context on excessive force claims is “whether

the officers’ actions are ‘objectively reasonable’ in light of the

facts and circumstances confronting them, without regard to their

underlying intent or motivation.” Graham v. Connor, 490 U.S. 386,

397 (1989). Under the totality of the circumstances approach, the

court is required to consider a balance of the factors of “the

severity of the crime at issue, whether the suspect poses an

immediate threat to the safety of the officers or others, and

whether he is actively resisting arrest or attempting to evade

arrest by flight.” Id. at 396. If the force employed is deadly

force, the officer’s use of force is reasonable only “if a

reasonable officer in Defendants’ position would have had probable

cause to believe that there was a threat of serious physical harm

to themselves or to others.” Estate of Larsen ex re. Sturdivan

v. Murr, 511 F.3d 1255, 1260 (10th Cir. 2008); see also Tennessee

v. Garner, 471 U.S. 1, 11 (1985). An important aspect of the

inquiry is “whether the officers were in danger at the precise

moment that they used force.” Phillips v. James, 422 F.3d 1075,

1083 (10th Cir. 2005).

Considering only the actions of Officers Canada, Meeks, and

15

Vogt, this Court cannot conclude that they exhibited an objectively

unreasonable level of force. After entry, Peterson immediately

physically confronted the Officers. All evidence indicates that

Peterson punched, grappled with, and attempted to disarm Officer

Meeks while Officer Canada deployed a taser in an effort to end

Peterson’s altercation with Officers Meeks and Beale.

The second prong of the qualified immunity test requires that

this Court determine that the law was clearly established at the

time of the incident. In evaluating whether the right was clearly

established, the court considers whether the right was

sufficiently clear that a reasonable government employee in the

defendant’s shoes would understand that what he or she violated

that right. Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d

1323, 1327 (10th Cir. 2007). “A clearly established right is

generally defined as a right so thoroughly developed and

consistently recognized under the law of the jurisdiction as to be

‘indisputable’ and ‘unquestioned.’” Lobozzo v. Colo. Dept. of

Corr., 429 Fed.Appx. 707, 710 (10th Cir. 2011). “Ordinarily, in

order for the law to be clearly established, there must be a

Supreme Court or Tenth Circuit decision on point, or the clearly

established weight of authority from other courts must have found

the law to be as the plaintiff maintains.” Currier v. Doran, 242

F.3d 905, 923 (10th Cir. 2001). see also Medina, 960 F.2d at 1498.

16

On the other hand, the Supreme Court has observed that it is

generally not necessary to find a controlling decision declaring

the “very action in question . . . unlawful.” Anderson v.

Creighton, 483 U.S. 635, 640 (1987). “In determining whether the

right was ‘clearly established,’ the court assesses the objective

legal reasonableness of the action at the time of the alleged

violation and asks whether ‘the contours of the right [were]

sufficiently clear that a reasonable official would understand

that what he is doing violates that right.’” Holland ex rel.

Overdorff v. Harrington, 268 F.3d 1179, 1186 (10th Cir. 2001). A

court should inquire “whether the law put officials on fair notice

that the described conduct was unconstitutional” rather than

engage in “a scavenger hunt for cases with precisely the same

facts.” Pierce v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir. 2004).

To be clear, Officers Canada, Meeks, and Vogt did not employ

the deadly force which resulted in Peterson’s death. Only Officer

Beale discharged his weapon into Peterson. 1 Plaintiff’s

1 To the extent Plaintiff asserts a claim of failure to intervene against

Officers Canada, Meeks, and Vogt, such a claim would require a showing that (i)

the Officers were present at the scene; (ii) the Officers witnessed another

officer applying force; (iii) the application of force was such that any

reasonable officer would recognize that the force being used was excessive under

the circumstances; and (iv) the Officers had a reasonable opportunity to

intercede to prevent the further application of excessive force, but failed to

do so. Mick v. Brewer, 76 F.3d 1127, 1136 (10th Cir. 1996)). The record does

not indicate Officers Canada, Meeks, or Vogt had an opportunity to intervene

with Officer Beale’s application of deadly force or that the application of

deadly force was objectively unreasonable under the circumstances.

17

protestations to the contrary, once Peterson was aware the entrants

to his apartment were police officers, he could have ended the

violent physical altercation and he certainly could have ended his

attempts to unholster Officer Meeks’ weapon. These actions went

beyond mere efforts to defend himself and established him as the

aggressor once the officers entered the apartment. This Court

cannot conclude that the level of force employed by Officers

Canada, Meeks, and Vogt violated clearly established law. These

Officers are entitled to qualified immunity on the excessive force

claim.

The remaining state law claims against Officers Canada,

Meeks, and Vogt of wrongful death, intentional infliction of

emotional distress, and assault and battery are based in the

Oklahoma Governmental Tort Claims Act (“OGTCA”). However, “[i]n

no instance in any such action shall an employee of the state or

of a political subdivision of the state acting within the scope of

employment be named as defendant; provided, however, such person

may be named as defendant under alternative allegations that such

person did not act within the scope of employment.” Okla. Stat.

Ann. tit. 51, § 153. An employee is acting within the “scope of

employment” when the “performance by an employee acting in good

faith within the duties of the employee's office or employment or

of tasks lawfully assigned by a competent authority including the

18

operation or use of an agency vehicle or equipment with actual or

implied consent of the supervisor of the employee, but shall not

include corruption or fraud.” Okla. Stat. Ann. tit. 51, § 152.

Nothing in the record indicates to this Court that Officers

Canada, Meeks, and Vogt were not acting in good faith or in the

scope of their employment as city police officers. Based upon the

information communicated to them by Officer Beale, they were acting

appropriately to apprehend a suspect who had assaulted a police

officer. As such is the case, the Officers are immune from

liability under the claims based in the OGTCA and those claims are

subject to dismissal.

Additional Facts Relevant to the Summary Judgment

Request of Officer Beale

Timmons stayed at Peterson’s apartment “maybe three nights

out of a week”. (Timmons Depo., p. 27, ll. 22-23). She did not

pay any of the bills but kept the apartment clean and put a couch

and some tablecloths in the apartment. (Timmons Depo., p. 27, ll.

12-18). Peterson and Timmons were friends but she would not let

him kiss her on the cheek or hold hands. (Timmons Depo., p. 19,

ll. 5-8). In a “short amount of months”, Timmons and Peterson

became close friends. She started staying in the apartment

because Peterson was arrested and the officers gave her his car

keys and house keys. (Timmons Depo., p. 20, ll. 19-25). When

19

Peterson got out of jail, he told Timmons he was never at the

apartment because of work and she could stay. (Timmons Depo., p.

22, ll. 7-9). Timmons found Peterson to be unhappy and “just

really aggressive”. (Timmons Depo., p. 29, ll. 6-9).

A few days before his death, Peterson forgot to give Timmons

a key to the apartment. To gain access, Timmons “drop-kicked the

door, and it busted a little bit out the bottom of the door on the

inside.” (Timmons Depo., p. 17, ll. 19-22). Timmons “pressed it

back on there” but it was “pretty wobbly” and someone would be

able to just push their way in. It still locked. (Timmons Depo.

P. 19, ll. 12-25).

The night before the incident, Timmons brought a homeless man

to the apartment from a Love’s convenience store. Peterson

objected but played video games with the homeless man all night.

(Timmons Depo., p. 30, ll. 2-17). Timmons woke up early the next

morning but she could not find any of her stuff in the apartment.

(Timmons Depo., p. 30, ll. 21-25). Peterson “was pissy” at Timmons

and walked her out of the apartment. She turned around to go back

in the apartment because she did not have her stuff and Peterson

shut the door. (Timmons Depo., p.31, ll. 4-8). Peterson would

not let Timmons back in the apartment. He gave her $11.00 and her

phone, which he had altered. (Timmons Depo., p. 31, ll. 17-24).

20

Timmons still had belongings bagged and boxed in Peterson’s laundry

room. (Timmons Depo., p. 33, ll. 5-10).

Timmons threatened to call the police if Peterson did not

return her belongings, stating, “I know you’re scared of them, so

you better not start with me. Give me back my stuff.” (Timmons

Depo., p. 34, ll. 18-20). Timmons called the police because she

knew Peterson was not going to give her stuff back to her.

(Timmons Depo., p. 40, ll. 9-10). She told the police what was

going on and they agreed to send someone to help Timmons get her

stuff. (Timmons Depo., p. 40, ll. 15-16).

Officer Beale responded to the call. His goal was to retrieve

Timmons belongings. (Beale Depo., p. 50, ll. 18-19). Timmons

knocked on the door to the apartment. The door wobbled and Officer

Beale told her it was open. Timmons opened the door. Officer

Beale saw that trim and nails were sticking out around the door

and he put his hand up to hold the trim so the nails would not hit

them. They then attempted to go into the apartment. Officer

Beale did not announce himself because he was with Timmons and

believed that she stayed in the apartment. (Beale Depo., p. 51,

ll. 13-23). Officer Beale began entering the apartment. He

testified that his forearm was holding the trim on the inside of

the door when he heard stomping and the door slammed on his left

21

forearm. (Beale Depo., p. 54, ll. 2-7). Officer Beale put his

right shoulder into the door to prevent further pressure on his

forearm while trying to remove his arm from the doorway. (Beale

Depo., p. 54, ll. 10-12).2 Officer Beale then announced he was

with the police department. He shoved the door to get his forearm

loose. He announced that he was there trying to help Timmons get

her stuff so she could leave and they could be done with the

situation. (Beale Depo., p. 55, ll. 1-8). Officer Beale

testified that Peterson yelled and threatened through the door.

He asked Peterson to put Timmons’ stuff at the back door but

Peterson said he would not do it until Officer Beale left. Officer

Beale did not feel comfortable leaving Timmons at the apartment.

He called for back up. (Beale Depo., p. 56, ll. 21-25; p. 57, ll.

1-6). Officer Beale unholstered his weapon because Peterson was

threatening him, telling Officer Beale he would “shoot me like an

intruder.” (Beale Depo., p. 58, ll. 21-25).

Timmons testified that she grabbed Officer Beale’s arm and

tried to stop him from entering the apartment. She told him,

“This has gone too far, and I’m sorry. Like, I did not want this.

He’s not going to give me my stuff. It’s okay. I’m going to go.”

2 Officer Beale did not complain about his arm when he went to the doctor. He

did not suffer any bruising and any injury to his arm was not reported in the

medical records of his visit. (Beale Depo., p. 69, ll. 7-18; p. 72, ll. 14-

20).

22

(Timmons Depo., p. 46, ll. 16-25). Timmons then ran to a tree.

Timmons provided a statement to the Oklahoma State Bureau of

Investigation after the incident. (Plaintiff’s Response to

Beale’s Motion for Summary Judgment, Exh. 5). Timmons indicated

in that statement that she knocked on the door to Peterson’s

apartment, then Officer Beale knocked on the door. The door

wobbled and Officer Beale asked Timmons if the door was open. She

told him no, that it was just wobbly, and pushed in the door a

little bit to show Officer Beale. Peterson then slammed the door

shut. Timmons did not reference that Officer Beale’s arm was

caught in the door. Timmons also does not state that Beale was

holding the door frame up at the time the door was slammed. Id.

Timmons testified that when she attempted to go through the

door, Peterson hit the door, the door hit Timmons and Timmons hit

Officer Beale. Officer Beale was to the left of Timmons.

(Timmons Depo., p. 48, ll. 22-24). Timmons stated that Officer

Beale’s arm did not get caught in the door when Peterson slammed

it shut. (Timmons Depo., p. 49, ll. 5-9). She further testified

that Peterson did not let the door come open. (Timmons Depo., p.

49, ll. 19-25).3

As previously stated, the primary bases for a warrantless

3 No body camera footage was offered into evidence from Officer Beale’s body

camera.

23

entry into Peterson’s apartment was the alleged assault upon

Officer Beale by slamming his arm in the door and Peterson’s flee

into the apartment. A significant, material factual dispute

precludes summary judgment on this claim, including the defense of

qualified immunity.

Moreover, the facts are muddled and disputed as to whether

Timmons was a resident or guest in Peterson’s apartment such that

she could give Officer Beale consent to enter the apartment. This

Court recognizes the authority of Illinois v. Rodriguez, 497 U.S.

177 (1990) which stands for the proposition that “[t]he

Constitution is no more violated when officers enter without a

warrant because they reasonably (though erroneously) believe that

the person who has consented to their entry is a resident of the

premises, than it is violated when they enter without a warrant

because they reasonably (though erroneously) believe they are in

pursuit of a violent felon who is about to escape.” Illinois v.

Rodriguez, 497 U.S. 177, 186 (1990). The problem in the facts in

this case lies in Timmons testimony that she attempted to pull

Officer Beale away from entering the home, indicating that she did

not consent to his entry into the apartment. Thus, even if it was

reasonable to believe Timmons (erroneously or correctly) was a co-

tenant with the capacity to give consent, the facts would lead to

the conclusion that she did not give her acquiescence to Officer

24

Beale’s entry.

As for the Fourth Amendment excessive force claim, the law

was clearly established at the time of this incident that deadly

force was only justified when a suspect “poses a significant threat

of death or serious physical injury to the officer or others.”

Garner, 471 U.S. at 3. Despite Plaintiff’s assertions that a

dispute exists in the facts as to whether Peterson was attempting

to unholster Officer Meeks’ weapon, this Court finds overwhelming

evidence that Peterson had his hand on the weapon at or near the

time of the use of deadly force. Even considering Officer Beale’s

testimony that he could not see Peterson’s hands when he fired but

could see his arms near Officer Meeks’ weapon and hearing Officer

Meeks yell that Peterson was attempting to unholster his weapon,

it was reasonable for Officer Beale to believe that Peterson posed

a significant threat to himself and the other Officers present in

the struggle.

The fact remains that the disputed claim that Officer Beale

violated Peterson’s constitutional right to be free of a

warrantless search could be found to have lead to the death of

Peterson and the resulting damages. Such disputes are in the

exclusive province of the jury as factfinder and not appropriately

resolved on summary judgment under the facts presented in this

case.

25

As for the state law claims asserted against Officer Beale,

the question under the OGTCA turns on whether he was acting within

the scope of his employment at the time he entered Peterson’s

apartment. As noted, this entails a question of fact regarding

consent to enter and the warrantless entry. “Whether a police

officer's actions were taken within the scope of employment is a

jury question unless only one reasonable conclusion can be drawn

from the facts alleged.” Tuffy's, Inc. v. City of Oklahoma City,

212 P.3d 1158, 1167 (Okla. 2009). Here, more than one conclusion

can be drawn due to the dispute in the facts. As a result,

dismissal of the state law claims is inappropriate on summary

judgment.4

Additional Facts Relevant to the Summary Judgment Request

of the City of Ada

The City hires officers through East Central University’s

Collegiate Officer Program (“COPS”). According to Carl Allen, the

current City of Ada Chief of Police and the deponent designated to

speak for the City on issues of training of its officers, the COPS

program takes students who have a concentration in criminal justice

or human resource to enter the program as “basically the

equivalency of an internship” with the same amount of hours as the

4 It should be noted that Officer Beale only sought summary judgment on the

state law claims based upon the immunity provided under the OGTCA. The merits

of the various state law claims were not directly addressed.

26

Council of Law Enforcement Education and Training (“CLEET”) basic

course. (Allen Depo., p. 18, ll. 20-25; p. 19, ll. 1-6). CLEET

recognizes the COPS program as the equivalency of CLEET’s basic

academy. (Allen Depo., p. 19, ll. 10-12). The City relies upon

COPS being good training with that training recognized by CLEET.

(Allen Depo., p. 20, ll. 24-25; p. 21, ll. 1-2). Additionally,

the City depends upon CLEET certification training for situations

such as entering dwellings in the officer meeting certain criteria

to be employed as a law enforcement officer. (Allen Depo., p. 24,

ll. 13-19). The City also provides field training with a Field

Training Officer to train newly hired officers in areas such as

mental health training and entering private residences. This

training is also included in the minimum annual mandated training

requirements for continuing education. (Allen Depo., p. 32, ll.

6-32; p. 33, ll. 1-4). The required field training is also set

out in the City’s Field Training Policy Manual. This manual

includes benchmarks that have to be reached in order to pass

through the field training program. (Allen Depo., p. 33, ll. 5-

14). Officers with the City are required to do a minimum of 24

hours of continuing education every year as well as a couple of

hours of mental health. This includes hands on training where

officers do defensive tactics and use of force training. If any

27

issues arise, they are identified through field training. (Allen

Depo., p. 25, ll. 4-14).

Officer Beale had COP certification which is equivalent to

CLEET certification. (Allen Depo., p. 26, ll. 16-17). He is also

CLEET certified and has received at least the minimum 24 hours of

continuing training each year he was an active police officer.

(Motion for Summary Judgment by Defendant City of Ada, Exh. No.

12).

While going through field training, one field training

officer out of three in 2016 found Officer Beale was not ready to

be released from the field training officer because of his “least

acceptable performance in the area of problem solving/decision

making. (Plaintiff’s Response to City of Ada’s Motion for Summary

Judgment, Exh. No. 6). Officer Beale was passed through the field

training program despite this recommendation. Id.

Officer Beale received deadly force training while in the

COPS program, de-escalation training through CLEET, and dealing

with individuals experiencing emotional or mental health episodes

through the field training program and CLEET. (Beale Depo. P. 29,

l. 25; p. 30, ll. 1-25).

Chief Allen agreed that Officer Beale’s placing of his firearm

on the pillar outside of Peterson’s apartment was a violation of

28

policy. (Allen Depo., p. 49, l. 25; p. 50, ll. 1-5). Officer

Beale received additional training on firearms handling as a result

of this violation. (Allen Depo., p. 80, ll. 10-23).

Plaintiff also points to an incident from August of 2016 where

Officer Beale fired ten shots at a vehicle as it was driving away.

The other officer at the scene, Carl Dewayne Campbell, stated that

Officer Beale’s discharge of his weapon was not necessary, in his

opinion. (Campbell Depo., p. 13, ll. 18-22). He attempted to

stop Officer Beale by yelling “whoa.” (Campbell Depo., p. 18, ll.

20-25, p. 19, ll. 1-5). To his knowledge, Officer Beale received

training in discharging a weapon through the COPS program.

(Campbell Depo., p. 19, ll. 20-25).

Municipal liability attaches under § 1983 when a

constitutional violation results from a municipality's: (i)

official policy; (ii) custom or practice; or (iii) failure to train

employees. City of Canton v. Harris, 489 U.S. 378, 380, 387,

(1989); Monell v. Department of Social Services of City of New

York, 436 U.S. 658, 690-91 (1978). Plaintiff has not identified

a policy, custom, or practice which would be subject the City to

municipal liability. Instead, Plaintiff focuses almost

exclusively upon the City’s failure to train its officers in the

use of deadly force and properly entering a dwelling.

29

To prevail on a claim that the City failed to train Officer

Beale5, a plaintiff must show that the municipality made a

“deliberate or conscious choice” to not train its employees, and

that the municipality was deliberately indifferent to its

inhabitants' constitutional rights. Manzanares v. Roosevelt Cnty.

Adult Det. Ctr., 331 F. Supp. 3d 1260, 1300 (D.N.M. 2018) citing

City of Canton v. Harris, 489 U.S. at 388-89. Plaintiff must

prove “the need for more or different training is so obvious, and

the inadequacy so likely to result in the violation of

constitutional rights, that the policymakers of the city can

reasonably be said to have been deliberately indifferent to the

need” for additional training. Ordinarily, “[p]roof of a single

incident of unconstitutional activity is not sufficient to impose

[municipal] liability.” In the case where a plaintiff seeks to

impose municipal liability on the basis of a single incident, the

plaintiff must show the particular illegal course of action was

taken pursuant to a decision made by a person with authority to

make policy decisions on behalf of the entity being sued. Jenkins

v. Wood, 81 F.3d 988, 994 (10th Cir. 1996); see also City of

Canton, Ohio v. Harris, 489 U.S. 378 (1989) (“Only where a failure

5 Since this Court has previously in this Opinion and Order found the Officer

Canada, Meeks, and Vogt did not violate Peterson’s constitutional rights and

were entitled to qualified immunity, the analysis on Plaintiff’s failure to

train claim will focus exclusively on Officer Beale.

30

to train reflects a ‘deliberate’ or ‘conscious' choice by an

municipality—a ‘policy’ as defined by our prior cases—can a city

be liable for such a failure under § 1983”).

Officer Beale received training through the COPS program and

through CLEET certification. These programs offer training in the

areas of use of force and entering a dwelling. Plaintiff appears

to be contending that after the incident of firing on the vehicle,

Officer Beale should have received additional training. Plaintiff

also contends obliquely that Officer Beale’s passing from the field

training program against the recommendation of one trainer

represented a training deficiency. These incidents occurred some

three years before the use of deadly force in this case. Officer

Beale indisputably continued to receive training through annual

CLEET requirements. Therefore, it would be impossible for this

Court to determine that the City made a deliberate choice to not

train its officers to the detriment of its citizens’ constitutional

rights. Indeed, CLEET certification itself has been determined

in this Court to support a finding of adequate training in this

District. Jones v. Hacker, 2015 WL 1279363, at *8 n.7 (E.D.

Okla. Mar. 20, 2015)(“CLEET-certification supports summary

judgment with respect to any argument that the City had a policy

or custom of failing to train or supervise its officers.” citing

31

Rollins v. Town of Haskell, Okla., 2009 WL 3614784, at *10

(E.D.Okla. 2009)). Plaintiff finds fault in Chief Allen’s

inability to specifically identify the curriculum of CLEET and

COPS training programs. Reliance upon these programs to provide

training to the officer does not represent an abandonment of the

City’s obligation to train – rather, it indicates an effort to use

these established training programs to meet its needs in insuring

uniform training for its officers. This Court finds no

constitutional deficiency in the City’s training of Officer Beale

such that municipal liability can be conferred.

Although Plaintiff also brings claims in the Complaint for

negligent hiring and retention against the City, Plaintiff has

offered no evidence to support these claims. Consequently, the

City is entitled to summary judgment on these claims.

Plaintiff asserts claims against the City based in state law

for wrongful death, assault and battery, and an Open Records Act

violation. The City relies upon the briefing done in connection

with the Officers’ summary judgment motions.6 In its summary

judgment motion, the City defends each of these claims by

essentially citing to the elements for each cause of action. Under

these claims, the City contends it cannot be held liable because

6 See, Defendant City of Ada’s Reply Brief, p. 18.

32

“the actions of the Defendant Officers were not tortious” or the

City did not commit the acts necessary to prevail on these claims.

Because the state law claims asserted against Officer Beale survive

summary judgment due to a factual dispute on whether he acted

within the scope of his employment, whether Officer Beale’s actions

were tortious remains at issue. “[A] municipality is liable for

the tortious acts of police officers committed within the scope of

employment as defined by the GTCA.” Tuffy's, Inc. v. City of

Oklahoma City, 212 P.3d 1158, 1167 (Okla. 2009).7 For now, the

state law claims against the City will survive until the actions

of Officer Beale are definitively determined.

Curiously, this Court finds little in the briefing on the

alleged violation of Open Records Act or on the claim for negligent

hiring, training, and retention. Faced with an incomplete record

on these subjects, these claims will survive as well.

IT IS THEREFORE ORDERED that Motion for Summary Judgment filed

by Defendants Officer Jussely Canada, Officer Michael Meeks, and

Officer Phillip Vogt (Docket Entry #93) is hereby GRANTED on all

7 The different bases provided by the party Defendants on summary judgment

creates part of the conundrum for this Court. The individual officers moved

for summary judgment on the state law tort claims against them on the basis of

immunity which turns on the question of whether they acted in the scope of their

employment while the City addresses the merits of the claims against the

officers. If it is determined by a jury that Officer Beale acted within the

scope of his employment and that he improperly entered Peterson’s apartment,

some or all of the state law tort claims may be determined to have merit. At

this stage of the proceedings, summary judgment is inappropriate.

33

claims. Officers Canada, Meeks, and Vogt are entitled to

qualified immunity on the § 1983 claims asserted against them.

IT IS FURTHER ORDERED that the Motion for Summary Judgment

filed by Defendant City of Ada (Docket Entry #94) is hereby GRANTED

in part, in that summary judgment is entered in favor of the City

on the § 1983 claim for the failure to train. The remainder of

the Motion is hereby DENIED.

IT IS FURTHER ORDERED that the Motion for Summary Judgment

filed by Defendant Officer Marcus Beale (Docket Entry #95) is

hereby GRANTED, in part, on the § 1983 claim for excessive force

but is DENIED as it pertains to the § 1983 claim for warrantless

entry and the state law claims.

IT IS SO ORDERED this 13*8 day of October, 2023.

[the

UNITED STATES MAGISTRATE JUDGE

34